PDF- -A John Simmons University of Virginia - Cambridge University Press Anarchy and Legal Order, Law and Politics for a Stateless Society (2013)

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Anarchy and Legal Order This book elaborates and defends the idea of law without the state

Animated by a vision of peaceful,

voluntary cooperation as a social ideal and building on a careful account of nonaggression,

it features a clear explanation of why the state is illegitimate,

It proposes an understanding of how law enforcement in a stateless society could be legitimate and what the optimal substance of law without the state might be,

suggests ways in which a stateless legal order could foster the growth of a culture of freedom,

and situates the project it elaborates in relation to leftist,

gary chartier is Professor of Law and Business Ethics and Associate Dean of the Ton and Vi Zapara School of Business at La Sierra University in Riverside,

California

He is the author of Economic Justice and Natural Law (2009),

The Conscience of an Anarchist (2011),

and The Analogy of Love (2007),

as well as the coeditor (with Charles W

Johnson) of Markets Not Capitalism: Individualist Anarchism against Bosses,

Inequality,

Corporate Power,

Anarchy and Legal Order Law and Politics for a Stateless Society Gary Chartier La Sierra University

Cambridge,

New York,

Melbourne,

Madrid,

Cape Town,

Singapore,

São Paulo,

Mexico City Cambridge University Press 32 Avenue of the Americas,

New York,

NY 10013-2473,

USA www

org Information on this title: www

org/9781107032286 © Gary Chartier 2013 This publication is in copyright

Subject to statutory exception and to the provisions of relevant collective licensing agreements,

no reproduction of any part may take place without the written permission of Cambridge University Press

First published 2013 Printed in the United States of America A catalog record for this publication is available from the British Library

Library of Congress Cataloging in Publication data Chartier,

Anarchy and legal order: law and politics for a stateless society / Gary Chartier

Includes index

ISBN 978-1-107-03228-6 (hardback) 1

C43  2013 340′

For Kevin Carson,

Stephen R

Sheldon Richman,

Jeffrey Cassidy,

Annette Bryson,

Justice being taken away,

what are kingdoms but great robberies

? For what are robberies themselves,

? The band itself is made up of men

it is ruled by the authority of a prince,

it is knit together by the pact of the confederacy

the booty is divided by the law agreed on

by the admittance of abandoned men,

this evil increases to such a degree that it holds places,

it assumes the more plainly the name of a kingdom,

because the reality is now manifestly conferred on it,

not by the removal of covetousness,

but by the addition of impunity

Indeed,

that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized

For when that king had asked the man what he meant by keeping hostile possession of the sea,

“What thou meanest by seizing the whole earth

but because I do it with a petty ship,

I am called a robber,

whilst thou who dost it with a great fleet art styled emperor

” – Augustine of Hippo (354–430) When Adam delved and Eve span,

Who was then the gentleman

? From the beginning all men by nature were created alike,

and our bondage or servitude came in by the unjust oppression of naughty men

For if God would have had any bondmen from the beginning,

he would have appointed who should be bond,

And therefore I exhort you to consider that now the time is come,

in which ye may (if ye will) cast off the yoke of bondage,

– John Ball (1338–81) Those who make laws,

appropriate wealth in order to secure power

All the legislative classes,

and all the classes whose possessions depend not on nature,

perceiving that law alone guarantees and secures their possessions,

and perceiving that government as the instrument for enforcing obedience to the law,

and thus for preserving their power and possessions,

to place at its disposal a large part of the annual produce of labour

– Thomas Hodgskin (1787–1869) [A] very large portion of the people of this country do not believe that the government is doing “equal and exact justice to all men

” And some persons are earnestly promulgating the idea that the government is not attempting to do,

and has no intention of doing,

anything like “equal and exact justice to all men”

and wilfully doing an incalculable amount of injustice

that it has always been doing this in the past,

and that it has no intention of doing anything else in the future

that it is a mere tool in the hands of a few ambitious,

is to keep—so far as they can without driving the people to rebellion—all wealth,

and that this injustice is the

direct cause of all the widespread poverty,

and servitude among the great body of the people

– Lysander Spooner (1808–87) When Warren and Proudhon,

in prosecuting their search for justice to labor,

came face to face with the obstacle of class monopolies,

they saw that these monopolies rested upon Authority,

and concluded that the thing to be done was,

not to strengthen this Authority and thus make monopoly universal,

but to utterly uproot Authority and give full sway to the opposite principle,

Liberty

Tucker (1854–1939) The State’s criminality is nothing new and nothing to be wondered at

It began when the first predatory group of men clustered together and formed the State,

and it will continue as long as the State exists in the world,

because the State is fundamentally an anti-social institution,

The idea that the State originated to serve any kind of social purpose is completely unhistorical

It originated in conquest and confiscation—that is to say,

It originated for the purpose of maintaining the division of society into an owning-andexploiting class and a propertyless dependent class—that is,

– Albert Jay Nock (1870–1945) What we call a government is after all nothing but a group of individuals,

have acquired the power to govern their fellows

The sanctions range from the fraud of divine right to that of sheer conquest

from the imbecility of hereditary privilege to the irrationality of counting voters

In most cases the extent to which these sanctions produce capable legislators,

and administrators will not bear critical examination

Nominally,

government exists and functions for the public

Actually it exists and functions for the benefit of those who have in one of these absurd ways acquired power to govern

It is accepted mainly because of the sheer inertia of great masses of people

Ostensibly,

it is accepted because it confers a sufficiency of visible benefits upon society to make the officials who operate it tolerated in spite of the selfish and idiotic exercise of the powers conferred upon them

– Ralph Borsodi (1886–1977) My political opinions lean more and more to Anarchy (philosophically understood,

meaning abolition of control not whiskered men with bombs)—or to ‘unconstitutional’ Monarchy

I would arrest anybody who uses the word state (in any sense other than the inanimate realm of England and its inhabitants,

a thing that has neither power,

and after a chance of recantation,

execute them if they remained obstinate

Tolkien (1892–1972)

You’ve asked me,

?” Now I answer you: “I am a Wobbly

” I mean this spiritually and politically

In saying this I refer less to political orientation than to political ethos,

and I take Wobbly to mean one thing: the opposite of bureaucrat

A Wobbly is not only a man who takes orders from himself

He’s also a man who’s often in the situation where there are no regulations to fall back upon that he hasn’t made up himself

He doesn’t like bosses— capitalistic or communistic—they are all the same to him

He wants to be,

and he wants everyone else to be,

his own boss at all times under all conditions and for any purposes they may want to follow up

This kind of spiritual condition,

Wright Mills (1916–62)

Contents

Preface Introduction: Embodying Freedom

Laying Foundations I

A Reasonable Conception of the Good Life Will Involve an Understanding of Both Welfare and Right Action II

Welfare Is Multidimensional III

Reasonably Seeking to Flourish or to Help Another to Flourish Requires Recognition,

Fairness,

A Flourishing Life Is a Reasonable Life

Rejecting Aggression I

Acting Reasonably Means Avoiding Aggression against Others and Their Justly Acquired Possessions II

Aggression Involves Unreasonably Injuring Others’ Bodies or Interfering with Their Just Possessory Interests III

The Requirements of Practical Reasonableness Preclude Many Choices Causing Injuries to Basic Aspects of Welfare IV

The Principle of Fairness Provides Good Reason to Avoid Interfering with Others’ Justly Acquired Possessions V

Just Possessory Claims Do Not Extend to Other Sentients or to Abstract Patterns VI

Arguments for Exceptionless Possessory Claims Seem Unpersuasive VII

Key Requirements of Practical Reasonableness Can Be Encapsulated in the Nonaggression Maxim

Contents

Safeguarding Cooperation I

The State Is Inimical to Peaceful,

Voluntary Cooperation II

Peaceful,

Voluntary Cooperation Is an Aspect of and a Crucial Precondition for a Flourishing Life III

State Actors’ Refusal to Cooperate with Others on a Peaceful,

Voluntary Basis Is Highly Problematic IV

The State Is Not Needed to Ensure Peaceful,

Voluntary Cooperation V

The State Is Not Needed to Ensure Peaceful,

Voluntary Cooperation in the Production of Crucial Public Goods VI

The State Is Dangerous VII

Embracing Peaceful,

Voluntary Cooperation Means Rejecting the State Appendix:  The Fact That General Preemptive Defense Is a Public Good Does Not Serve as a Plausible Justification for the State

Enforcing Law I

Forcibly Imposing Legal Requirements in a Stateless Society Is Not Objectionable on the Same Grounds as Aggression by the State II

There Might Seem to Be a Tension between Opposing the State and Supporting the Idea of Law III

Legal Codes in a Stateless Society Would Have Varied Sources and Contents,

but Might Exhibit Common Features IV

Resolving Disputes between Participants in Structured Legal Regimes Need Not Involve State-Like Injustice V

The Reality of Moral Constraints on Legal Rules Would Render the Notion of Consent Noncircular and Would Be Compatible with Legal Polycentricity VI

A Regime Could Forcibly Resolve Conflicts with Outlaws without Becoming Morally Indistinguishable from a State VII

A Legal Regime in a Stateless Society Would Be Morally Distinguishable from a State in Important Ways 5

Rectifying Injury I

Just Legal Regimes in a Stateless Society Can Effectively Prevent,

Just Legal Regimes Would Use Civil Rather than Criminal Justice Mechanisms to Rectify Injuries

Contents

A Just Legal Regime in a Stateless Society Could Rectify Environmentally Mediated Injuries as well as Injuries to Nonhuman Animals and Vulnerable Human Persons IV

Just Legal Regimes Can Rectify Injuries without the Involvement of the State 6

Liberating Society I

Just Legal Rules and Institutions in a Stateless Society Could Facilitate Liberating Social Change Using Nonaggressive Means II

Techniques for Fostering Social Change Need Not Be Aggressive III

Just Legal Rules and Institutions in a Stateless Society Would Further Wealth Redistribution IV

Rectifying Injustice Could Help to Create Alternatives to Workplace Hierarchies V

A Stateless Society’s Legal Order Would Foster the Emergence of a Free Culture VI

Just Legal Rules in a Stateless Society Would Conduce to Positive but Nonaggressive Social Change Situating Liberation I

Just Legal Rules and Institutions in a Stateless Society Would Embody Leftist,

Anticapitalist,

The Project of Creating a Stateless Society with Just Legal Rules and Institutions Is a Leftist Project III

The Project of Building a Stateless Society with Just Legal Rules and Institutions Is an Anticapitalist Project IV

The Project of Fostering a Stateless Society with Just Legal Rules Can Reasonably Be Described as Socialist V

The Model of Stateless Law Outlined Here Embodies a Distinctively Leftist,

Anticapitalist,

Conclusion: Ordering Anarchy

About the Author

Preface

The “anarchistic socialism” of Benjamin Tucker and the “Ricardian socialism” of Thomas Hodgskin lie behind this book,

which is in significant part an attempt to defend contemporary descendants of their ideas

As I seek to articulate an anarchist position that is identifiably leftist,

while also hospitable to robust possessory claims and to mutually beneficial exchange as a valuable variety of peaceful,

I am deeply grateful for the intellectual inheritance I have received from Tucker and Hodgskin and those who learned from and dialogued with them—Voltairine de Cleyre,

Lysander Spooner,

Dyer Lum,

Herbert Spencer,

Greene,

• Kevin Carson’s brilliant synthesis of ideas from diverse radical traditions and his ability to draw effortlessly on a wealth of material from economics,

and organizational theory have grounded an approach to anarchism that I realized could accommodate both my visceral antiauthoritarianism and my opposition to exclusion,

He continues to stimulate and challenge me,

and to exemplify an enviable commitment to scholarly productivity

This book would be unimaginable without the inspiration his work has provided

• As a source of insight during my dissertation research,

as the external examiner of my dissertation,

and as a continuing interlocutor in subsequent years,

Stephen R

Clark has served as an exceptional model of clear thinking and elegant writing,

of the effective integration of moral passion and reflective faith 1

I direct those who are convinced that Spencer does not belong in this group to a number of essays by Roderick T

all available via his website,

Praxeology

Thomas Hodgskin,

Book Review,

The Economist,

at 149 (reviewing Herbert Spencer,

Social Statics [1851])

Preface

He was among the first anarchist thinkers to help me see that the authority of the state was indefensible

Stephen’s nimble mind ranges over a remarkable range of topics,

and I remain delighted by the ongoing opportunity to learn from him about all of them,

• Sheldon Richman has been a constantly available conversation partner,

directing me to unfamiliar sources,

and serving as a vital link to the history of American radicalism

His dry wit,

and breadth of knowledge have made our constant exchanges both pleasurable and instructive

• A treasured friend for more than thirty years,

Jeffrey Cassidy has helped to expand my horizons even as he has offered consistent warmth,

and innumerable opportunities to banter about pop culture

to reflect on vital human relationships

to explore issues in theology,

and to engage in a welcome and continuing process of mutual radicalization

• Annette Bryson has engaged and listened and dreamed with me as I have confronted an enormous number of personal and intellectual challenges

It has been a delight to know her since college,

and to reflect with her on our shared past and our many overlapping connections

She has invited me into the world of her own philosophical scholarship,

And while she may not embrace all of the positions I take here,

we have happily shared a wide range of political convictions and,

an underlying sensibility marked by concern for inclusion and opposition to aggression,

Wise and compassionate and movingly trusting,

she enriches my life in diverse ways

warmly decent and generous friend and dedicated campaigner for peace and for the well-being and dignity of immigrants and workers,

has offered for many years the perspective of a humane,

antiauthoritarian Marxist on my politics,

of an informed scholar of the Bible on my theological ruminations,

and of a sensitive pastor on my personal struggles

It is an honor and a pleasure to work with him as a colleague,

to team-teach with him a course on social change that links our diverse perspectives,

and to share my angst and my joy with him

I am fortunate to be able to call Kevin,

Stephen,

Sheldon,

Jeffrey,

Annette,

and Wonil my friends and to continue to be able to draw on their insights and their personal support

My comrades at the Center for a Stateless Society—including Sheldon,

Charles W

Johnson,

Roderick T

Brad Spangler,

Chris Lempa,

Joseph Stromberg,

James Tuttle,

Roman Pearah,

Morgenstern,

Tom Knapp,

Darian Worden,

David S

D’Amato,

Tennyson McCalla,

Mike Gogulski,

Preface

Kenyon,

Mariana Evica,

Stephanie Murphy,

Wendy McElroy,

Stephan Kinsella,

William Gillis,

Julia Riber Pitt,

and Jeremy Weiland—deserve my ongoing thanks for,

their enthusiastic encouragement of this and other projects

They have been engaging conversation partners as well as valued friends

Their ideas are reflected throughout this book

I’m also very thankful for the stimuli for my work provided by John Finnis,

Germain Grisez,

Carole Pateman,

Michael Taylor,

Anthony de Jasay,

Stephen Munzer,

Fritz Guy,

John Hick,

Brian Hebblethwaite,

Charles Teel,

David Schmidtz,

David D

Friedman,

Murray Rothbard,

Karl Hess,

Gene Callahan deserves credit for prompting the reflections that led to what is now Chapter 5

While I am unsympathetic to David Hume’s metaethical posture,

I have drawn appreciatively on his general account of justice in possession at multiple points

Thanks are due,

Pete Boettke,

Steve Horwitz,

John Tomasi,

Fernando Tesón,

Andrew Jason Cohen,

Jason Brennan,

Danny Shapiro,

Jacob Levy,

James Stacey Taylor,

Brian Doherty,

Riley O’Neill,

Gene Berkman,

and Kevin Vallier for listening,

to Sky Conway and Joyce Brand for fostering good conversation

and to Sandy Thatcher and Roy Carlisle for being the seasoned publishing professionals they are

My parents did not live to see this book published,

and no doubt each would have responded to it with mixed feelings

But they deserve repeated thanks for bequeathing me a passion for freedom,

and a disgust at elite mischief—all of which are,

I hope,

Anarchy and Legal Order builds on,

even as in some ways it departs from,

the account of ethics in economic life I developed in Economic Justice and Natural Law

It differs especially in allowing the anarchist ideas that played minor roles in the earlier book to occupy center stage and in focusing specifically on the moral limits on the use of force—and so on the development of a natural-law version of the moral requirement of nonaggression

who addressed a number of pointed questions to me about the links between Economic Justice and my more explicitly anarchist work,

but I am also grateful to the other participants in an author-and-critics session devoted to the book that took place at the 2011 San Diego meeting of the American Philosophical Association’s Pacific Division—Roderick Long,

Douglas Rasmussen,

David Gordon,

Carson also provided detailed,

helpful comments on a draft version of Anarchy and Legal Other differences include (i) greater development of the desiderata underlying just possessory claims and the implications of these desiderata,

(ii) a clearer distinction between the justifications for the use of force with and without consent,

(iii) a change in focus from direct legal mandates to the indirect impact of institutional change as the central means of fostering workplace democracy and nondiscrimination,

and (iv) an explicit acknowledgment of the importance of mechanisms for encouraging social change quite apart from the legal system

Preface

Sandy Thatcher offered a wide range of helpful suggestions on parts of the manuscript,

John Clark,

Richard Broughton,

Stephen R

Roderick T

Mark Pennington,

Douglas B

Rasmussen,

Michael Stokes,

Joseph Stromberg,

David Gordon,

I am grateful as well to Neera Badhwar for giving me the chance to think about well-being in dialogue with a chapter of her forthcoming book on virtue and happiness,

David Schmidtz,

Matt Zwolinski,

Fernando R

Tesón,

Mark Pennington,

and Jonathan Crowe for being willing to endorse the book

Thanks are also due,

to the usual suspects: Elenor Webb and (in addition to Jeffrey,

Annette,

Sheldon,

Alexander Lian,

Andrew Howe,

Angela Keaton,

Anne-Marie Pearson,

Bart Willruth,

Carole Pateman,

Chelsea Krafve,

Craig R

Kinzer,

David B

David R

Larson,

Deborah K

Donna Carlson,

Ellen Hubbell,

Eva Pascal,

Fritz Guy,

Heather Ferguson,

Holden,

Jesse Leamon,

Joel Sandefur,

John Elder,

John Thomas,

Julio C

Muñoz,

Kenneth A

Dickey,

Lawrence T

Geraty,

Less Antman,

Ligia Radoias,

Maria Zlateva,

Michael Orlando,

Nabil Abu-Assal,

Patricia Cabrera,

Roger E

Rustad,

Ronel Harvey,

Sarvi Sheybany,

Hwahng,

Kent Rogers

I especially appreciate the moral and logistical support Elenor provided as I completed this book

As usual,

Dean Thomas ensured that La Sierra University’s Zapara School of Business was a congenial place in which to complete work on a project of this kind

I am very thankful to Cambridge University Press editors John Berger and Finòla O’Sullivan for their support for this book,

and to production editor Paul Smolenski,

senior editorial assistant David Jou,

Bhavani Ganesh (of Newgen Knowledge Works Pvt Ltd

Chennai),

and other participants in the production process for facilitating the rapid production of the book,

ensuring its æsthetic appeal,

and helping to make my writing accurate and clear

This exceptional source of news and inspirer of activism,

cross-ideological but staffed by a disproportionate number of anarchists,

performs a vital service by promoting peaceful,

voluntary cooperation in a conflict-ridden world,

and I urge all those who find my arguments in Anarchy and Legal Order appealing to support it

In addition,

I am grateful for permission to make use in this book of material published elsewhere: Enforcing the Law and Being a State,

Government Is No Friend of the Poor,

The Freeman: Ideas on Liberty,

Response to Charles Clark

188 (2011)

Socialist Ends,

Market Means: Five Essays (Tulsa Alliance of the Libertarian Left,

Advocates of Freed Markets Should Embrace “Anti-Capitalism” (Tulsa Alliance of the Libertarian Left,

Intellectual Property and Natural Law,

36 Aust

58 (2011)

Pirate Constitutions and Workplace Democracy,

Natural Law and Non-Aggression,

and Natural Law and Animal Rights,

Introduction Embodying Freedom

People cooperate peacefully and voluntarily when they interact without aggression

is both possible and desirable

aggressing or threatening to engage in aggression against those who disobey it,

voluntary society must be a stateless society—an anarchist society

non-remedial harm to people’s bodies and nondefensive,

nonremedial interference with their just possessory interests

“Peace” as nonaggression is a necessary condition for peace in other,

and it can reasonably be expected to promote peace in these senses

which is concerned with choice

Moral choices are made by particular people,

even if in concert and cooperation with others

while it is possible to talk about a “just legal system” or even a “just society,” this kind of language is shorthand

A just institution is one that characteristically functions in accordance with reasonable choices by particular people

Similarly,

to call a legal rule just is simply to say that someone can enforce the rule consistently without doing anything unjust

and exercises something reasonably like,

a monopoly over the determination,

and enforcement of legal rights in a given geographic area

Thanks to Charles Johnson for emphasizing the importance of referring to legal rights here and to Heather Ferguson for stressing the need to clarify the meaning of “state” as I use it in this book

In the interests of convenience,

I refer at various points to states as doing things

states as such don’t do things—rather,

engaged in certain kinds of cooperative activities and proceeding with the benefit of certain kinds of legitimation,

do things in their roles as state actors,

and it should be clear throughout I have the actions of such people in mind when I talk about state action

By “anarchy,” I do not,

mean chaotic violence but rather social order rooted in peaceful,

Patricia Crone,

Ninth-Century Muslim Anarchists,

While my primary focus here is on opposition to social order created and maintained by aggressive force,

support for anarchy is naturally and intimately associated with opposition to social hierarchies maintained by nonaggressive means (see Charles W

Johnson,

Liberty,

Equality,

Solidarity: Toward a Dialectical Anarchism,

in Anarchism/Minarchism: Is a Government Part of a Free Country

Long and Tibor Machan eds

ending institutionalized aggression and various complementary varieties of nonaggressive 1

Introduction

general character of the kind of legal and political order compatible with anarchy can be specified and justified in light of a plausible conception of what it means for people to live fulfilled,

Contemporary natural law theory offers such a conception

It incorporates both a rich and variegated understanding of human well-being and a set of principles that can guide our attempts to foster our own welfare and that of others—the Principle of Fairness,

and the Principle of Recognition (Chapter 1)

People’s obligations to each other with respect to physical things are both sources of conflict and (while too frequently invoked to legitimize unjust privilege) useful guarantors of autonomy and sources of flourishing

just possessory claims serve to demarcate those interests people can reasonably defend using force from those they can’t—and,

they help to explain why the state is illegitimate

Rooted both in basic moral principles and in a set of desiderata derived from these principles and from truisms about human existence,

embodied in what I call the baseline possessory rules,

can play a crucial instrumental role in fostering people’s welfare

However,

while there are good reasons to respect people’s possessory interests in physical things,

people often claim that they are entitled to treat other kinds of things as possessions

Though people often claim that other people or other sentients are among their legitimate possessions,

arguments that our fellow sentients,

are raw material we can use at our discretion are unconvincing

And the notion that someone can justifiably control how other people embody abstract ideas in their own legitimate possessions finds little support in a credible account of people’s just possessory claims

The strong prima facie presumption in favor of respecting people’s claims to their justly acquired physical possessions—those acquired in accordance with the baseline rules4—combined with everyone’s right not to be the object of purposeful,

or otherwise unreasonable physical attack,

can be usefully summarized in the form of a maxim of nonaggression (Chapter 2)

To anticipate: just acquisition is acquisition in accordance with the baseline rules

Someone justly acquires a physical object if she takes effective possession of it when it is not justly claimed by anyone else,

or when she receives it through voluntary transfer from another just possessor

a Kantian account of duties with respect to basic aspects of others’ well-being,

and a Humean account of obligations with respect to others’ possessory claims

The understanding of the prohibition on violence against basic aspects of flourishing which the natural-law approach grounds is thus straightforwardly deontological,

similar to that enshrined in the Formula of the End-in-Itself

By contrast,

the account of possessory rules I defend has (as applied to institutional actors) obvious affinities with a sort of practice-consequentialism

while I do not believe that global or aggregating consequentialism is defensible,

persons reasoning in accordance with the Principle of

Introduction

To reject aggression is to embrace a model of social interaction rooted in peaceful,

This kind of cooperation can occur without the state

it can be fostered effectively by a variety of nonaggressive social institutions,

institutions upholding consensual legal rules,

and providing protection against aggression,

which I’ll refer to as legal regimes

the state is premised on the denial of human moral equality and is inimical to peaceful,

voluntary cooperation (and the flourishing such cooperation facilitates) because of the state’s nonconsensual character and its inefficiency,

and penchant for aggression—especially in the service of elite groups (Chapter 3)

The state is unjustified,

But life without the state need not be thought of as organized purely on the basis of ad hoc cooperation or persistent social norms

There would be good reason for people in a stateless society to maintain just legal regimes

Such regimes (which might serve geographically localized or virtual and widely distributed networks of people) would of necessity be rooted in actual rather than implied or hypothetical consent

and even when they employed force against outlaws,

they would be morally distinguishable from states in important ways (Chapter 4)

Though different actual legal regimes in a stateless society would doubtless adopt different rules,

the maxim of nonaggression and the prohibitions on violating people’s bodies and on interference with their possessory claims that underlie it provide a clear and intelligible framework for the legal rules it would be reasonable for just institutions in a stateless society to implement

A central role in maintaining justice and preventing aggression should be played by simple tort-law rules precluding attacks on bodies and possessions and requiring compensation for injuries when such attacks occur

Such rules would leave no room for attempts to foster virtue using the force of law or to employ the law to prevent or end nonaggressive injuries—often important,

but appropriately addressed by non-forcible means

Just legal rules enforced in a stateless society would not feature the separate category of crime,

A stateless society could deal effectively not only with direct interpersonal injuries but also with environmentally mediated injuries to Fairness would surely take expected consequences into account when determining what it was and was not reasonable for them to do,

and the general tendency of the baseline rules to foster certain kinds of consequences would (I believe) tend to make it reasonable for people to endorse them and to render it unreasonable for people to decline to so

Given the importance of simplicity and reliability,

legal regimes would have every reason to treat the baseline rules as if they were deontological requirements,

and ordinary moral actors would have good reason to treat them as generally exceptionless

For a model of how legal regimes in a stateless society might be structured,

Leeson,

Government,

301 (2011)

Introduction

bodies and to possessions and with harms to human persons with limited capacities as well as to sentient nonhuman animals (Chapter 5)

or unfair injuries to bodies and interference with just possessory interests even in pursuit of desirable objectives,8 requiring compensation for both intentional and unintentional injuries

But legal rules and institutions precluding aggression could make possible a range of effective responses to the problems of dispossession,

Just institutions in a stateless society could engage in and foster multiple forms of wealth redistribution,

employing both legal mechanisms and various nonaggressive means not dependent on the force of law

And a combination of structural change and nonaggressive direct action could help to humanize workplaces,

to liberate people from stultifying social pressure,

and to create opportunities for the embodiment of diverse forms of human flourishing in ways that would help to nourish a culture of freedom (Chapter 6)

qualify as genuinely personal creatures (the obvious candidates would be cetaceans,

But I seek to argue at more than one point that sentient creatures that are not fully personal may still deserve moral standing and legal protection

See Gary Varner,

Personhood,

Ethics,

and Animal Cognition: Situating Animals in Hare’s Two Level Utilitarianism (2012)

except when doing so is (in light of the various interpersonal and systemic considerations noted in Chapter 2) consistent with the Principle of Fairness (since the Principle determines in what sense possessory interests are just)

a complex and open-textured concept,

even when the vexed (though profoundly important) question of free will in the metaphysical sense is bracketed

In general,

freedom in the sense(s) in which I am concerned with it here is the ability to do what one wants

(Metaphysical freedom builds on a similar sense of subjection to another,

with the difference that the other is God or Nature

(i) I take someone to enjoy what I will call freedom from aggression when she is not prevented from doing what she wants to do by someone else’s actual or threatened aggression

(At least under ordinary circumstance,

the bandit who points a gun at you and demands,

!” is violating your freedom in this sense

) (This sort of freedom is often called political freedom,

but I avoid labeling it that way here because the realm of the political as I refer to it in this book has to do with more than just the use of force—it’s also concerned with voluntary collective action,

and efforts designed to shape and influence the behavior of institutions

) (ii) Someone enjoys social freedom when she is not only free from aggression but also not (a) presented with an attempt to motivate her that focuses primarily on an appeal to the would-be motivator’s position or status rather than to the inherent value of the action in which she is being urged to engage or (b) faced with a dilemma of the following sort: if she does what she wants,

someone else will do something nonaggressive but inconsistent with the principles of practical reasonableness as I elaborate them in Chapter 1

(The boss who threatens to fire you if you fail to adhere to an arbitrary,

humiliating work rule by which she would be unwilling to live herself is violating your social freedom

) Freedom from aggression and social freedom both involve the absence of constraints imposed on one’s choices by other people’s choices—of subjection to other people’s wills

We might also consider broader senses of freedom that involve the absence of limits on one’s ability to do what one likes posed by (iii) resources (I am not currently free to buy an island),

(iv) culture (someone in a traditional society 7

Introduction

The project of building a society free from the privileges secured by the state may initially seem difficult to classify

It embraces freedom and challenges the hierarchical management of the economy,

while also rejecting capitalism

It exhibits obvious affinities with classical liberal and libertarian thought,

but unequivocally repudiates the affirmation of corporate power and statist privilege too many classical liberals and libertarians seem inclined to offer

It shares modern liberalism’s challenge to non-statist forms of subordination and exclusion while declining the modern liberal’s Mephistophelean invitation to use the state to provide remedies for them

It is a leftist,

anticapitalist project appropriately seen as an expression of the strand of the socialist tradition developed by a range of nineteenth-century American radicals (Chapter 7)

There is nothing inherently contradictory about the idea of using law to structure a stateless society

Rooted in the requirements of practical reasonableness,

just legal rules enforced by a network of overlapping,

consensual legal regimes could foster peaceful,

voluntary cooperation by restraining aggression,

and coordinating people’s actions where necessary,

even while allowing considerable room for variety in lifestyles and patterns of interaction

They could deal effectively with the problems of exclusion,

and in this way lay the groundwork for the emergence of a culture of freedom (Conclusion)

In one sense,

the shape of freedom—of peaceful,

voluntary cooperation—will be given by the basic rules and norms that structure interaction in a stateless society

But the shape of freedom as lived is not,

determined by a mandate issued by statist bureaucrats or revolutionary ideologues

The contours of life in a stateless society will be the product of innumerable free choices by people engaged in peaceful,

Such a society need not and will not be a society of isolated atoms: people do not need the state to equip them to form thriving networks of mutual support and interdependence

Absent the state’s threat of aggressive force,

might confront inhibitions that prevent her from marrying outside her social class,

(v) emotions (a victim of childhood violence may in a practical sense lack the freedom to trust,

even though she very much wants to do so),

or (vi) the laws of nature (I am not free to fly without mechanical assistance or to vary my height at will)

one might say that someone enjoys moral freedom in a case in which there is no conflict between her preferences and the requirements of practical reasonableness

A society rooted in peaceful,

voluntary cooperation is one in which people consistently and predictably enjoy freedom from aggression

Its institutions could reasonably be expected (see Chapter 6,

infra) to facilitate the achievement of social freedom as well as,

freedom from cultural constraints,

I leave it to transhumanists to consider the degree to which it might foster freedom from the laws of nature

Moral freedom is not,

a matter for decision or influence,

given that moral requirements are not products of our wills and that our preferences are not legitimately subject to authoritarian meddling

On the varieties of freedom,

Mortimer J

The Idea of Freedom (2 vols

1958–61)

David Schmidtz & Jason Brennan,

A Brief History of Liberty (2010)

Introduction

but (as Sheldon Richman suggests we say) molecular,10 linked with each other in innumerable arrays of fruitful relationships

Together,

they will form and reform their own lives and inform the choices of others through their voluntary interactions

Together,

they will determine the shape of freedom

For this phrase,

Molecular Individualism,

The Freeman: Ideas on Liberty,

March 1,

org/columns/perspective/perspective-molecular-individualism/

Since Richman refers specifically to molecular individualism,

it is worth emphasizing that individualism comes in multiple varieties: political,

Political individualism is the thesis that force should not be used to prevent,

or sanction nonaggressive conduct

Methodological individualism is the thesis that ultimate explanations of human events refer to the characteristics and actions of particular persons

Moral individualism is the thesis that only particular creatures have moral worth

Metaphysical individualism is the thesis that persons (and other creatures) are importantly distinguishable from each other and from their relationships with each other

It is important to emphasize that in none of these senses is individualism incompatible with the recognition that (i) we have robust moral responsibilities,

(ii) relationships help to determine who we are

(iii) relationships both constitute and contribute to our flourishing

and (iv)  institutions significantly affect our self-understandings,

and the possibilities we confront

Murray N

Rothbard,

Economy,

and State with Power and Market 3 n

  A Reasonable Conception of the Good Life Will Involve an Understanding of Both Welfare and Right Action A credible account of human flourishing and reasonable human action can ground the law and politics of a society rooted in peaceful,

The elaboration and justification of such an account is not the purpose of this book

what I offer here is a brief overview rather than the extensive argument that would be required in a study focused on the explication of the normative approach I adopt

I maintain,

The general approach to moral reasoning I defend here is outlined and applied in Gary Chartier,

Economic Justice and Natural Law (2009),

though I have refined and in some ways altered here the position elaborated in that book

In both books,

I draw freely on,

and with equal freedom depart from,

the stimulating and helpful work of the “new classical natural law” theorists and other contemporary exponents of natural law ethics

John Finnis,

Natural Law and Natural Rights (1980) [hereinafter Finnis,

John Finnis,

Fundamentals of Ethics (1983) [hereinafter Finnis,

Ethics]

John Finnis,

Commensuration and Practical Reason,

Incomparability,

Commensuration]

The Way of the Lord Jesus: Christian Moral Principles (1983) [hereinafter Grisez,

Principles]

Germain Grisez & Russell Shaw,

Beyond the New Morality: The Responsibilities of Freedom (3rd ed

Finnis,

Joseph M

Grisez,

Nuclear Deterrence,

Morality,

and Realism (1987) [hereinafter Finnis et al

Deterrence]

Grisez,

The Way of the Lord Jesus: Living a Christian Life (1994)

John Finnis,

Aquinas: Moral,

Political,

and Legal Theory (1998) [hereinafter Finnis,

Aquinas]

Germain Grisez & Joseph M

Life and Death with Liberty and Justice: A Contribution to the Euthanasia Debate (1979)

Robert P

George,

In Defense of Natural Law (2001)

Germain Grisez,

Joseph M

Boyle & John Finnis,

Practical Principles,

Moral Truth,

Juris 99 (1987)

Finnis,

Germain G

Grisez & Joseph M

“Direct’ and ‘Indirect”: A Reply to Critics of Our Action Theory,

Murphy,

Natural Law and Practical Rationality (2001) [hereinafter Murphy,

Rationality]

Murphy,

Natural Law in Jurisprudence and Politics (2006)

Timothy Chappell,

Understanding Human Goods: A Theory of Ethics (1995)

While my work,

like the work of these theorists,

clearly lies within the broader natural law tradition,

it should be clear that it differs from that of other natural law theorists in a variety of ways

Anarchy and Legal Order

substantive and pluriform conception of well-being (Part II) and a set of constraints governing the flourishing of moral agents and moral patients (Part III)

and declining to cause harm purposefully or instrumentally) can ground a rich and attractive conception of the good life (Part IV)

  Welfare Is Multidimensional A

  Well-Being Is Diverse and Lacks a Substantive Essence Talk about welfare,

or fulfillment (I use the terms synonymously) is generic and abstract

there’s no substantive essence of what it is for something to be an aspect of welfare other than this

People often talk as if there were such an essence

Two common approaches to specifying it are unsatisfactory: (i) the notion that something is an instance or aspect of welfare if it counts as the satisfaction of a preference (Section B),

and (ii) the idea that something is an instance or aspect of welfare if it produces some hedonic psychic state (Section C)

Rather,

welfare is a multidimensional reality without a substantive essence that can be identified using a range of complementary approaches (Section D)

Its aspects are incommensurable and non-fungible (Section E)

And well-being matters in any particular case precisely because it is the well-being of a For present purposes,

I count as a moral agent if I am capable of making morally responsible choices

I count as a moral patient if I am owed moral consideration

at 6–23 for a further discussion of the approach to moral theory represented here and further references to sources of insight on which I draw here

Though there are not dramatic differences,

and of course the present account,

represents the current state of my thinking about the contours of an appealing moral stance

Thomas M

Scanlon,

What We Owe to Each Other 95–100 (1998)

we experience æsthetic form and sensory pleasure

we acquire and embody practical reasonableness and knowledge

While we can reasonably talk about friendship,

æsthetic experience,

as aspects or dimensions of welfare or well-being,

some are qualities of our existence

It’s awkward to talk about all of them,

In this book,

I’ve decided to avoid talking about participating in the various aspects of well-being (except when,

participation-language has an obvious and non-confusing meaning),

while it need not be read as doing so,

it too easily suggests that aspects of well-being are preexisting impersonal realities

I use a variety of alternatives (talk about flourishing will be especially common) in hopes of emphasizing that particular relationships,

and states of being are worthwhile goals

Laying Foundations

particular moral patient (Section F)

In brief,

welfare or well-being or flourishing or fulfillment is what it is,

independent (at least in general) of our reactions to it,6 and it is inescapably diverse (Section G)

  Welfare Is Not Preference-Satisfaction The notion of welfare (like the similar notions of well-being,

and fulfillment) is essentially normative

talk about preferences is straightforwardly descriptive

To report a preference is simply to note a particular attitude or disposition on someone’s part

For any preference,

it will always be reasonable to ask whether it ought to be satisfied

the question of what action it is reasonable for me to take in light of the preference always remains open

To the factual report,

“I prefer X,” it will always make sense to respond,

“But is it reasonable for you to prefer X

?” The only basis on which it would make sense to equate welfare with preference would be a synthetic judgment to the effect that I ought (at least presumptively) to prefer what I prefer (not in the sense that I ought to ratify some particular preference,

but that I should prefer things simply because I do in fact prefer them)

And there are too many instances of things which people do prefer but which we ordinarily suppose that they have good reason not to prefer for this to be an attractive option

In any event,

the equation of preference with welfare misses the point that,

I ordinarily prefer it under some description other than the description “preferred by me

” My preference typically presupposes the judgment that what I am preferring is actually worth preferring—good for me or for another

It might seem that this isn’t always the case: sometimes I select one option from among a menu of possibilities simply because I experience some sort of psychic inclination to do so

And there is a sense in which acting on my preference in this case needs no further justification than that I prefer what I prefer

But notice that,

not just anything is on the menu of possibilities

The fact that something is treated as reasonably included on the menu suggests that it’s already been vetted as reasonable,

it’s easy to imagine a case in which I express a preference for myself or another that might seem (or be) unintelligible or undesirable,

and so in need of justification

Justifying something simply by saying that I prefer it only makes sense in the limit-case in which I’m choosing it from among a set of possibilities any Peace of mind,

æsthetic experience,

and sensory pleasure might all be thought to be exceptions here

in the specialized discourse of welfare economics,

which is concerned precisely with determining how best to satisfy preferences

My goal here is not to correct economists in their use of language

my focus is on welfare in what I take to be the ordinary-language sense

Thanks to Sandy Thatcher for emphasizing the need to make this point

Anarchy and Legal Order

of which might merit being selected

Preferring ordinarily presupposes preferability,

so preference-satisfaction can’t reasonably substitute for preferability

  Welfare Is Not a Pleasant Emotional Reaction 1

  It Is a Mistake to Identify Well-Being with a Positive Emotional State Well-being isn’t the same thing as some sort of positive emotional reaction

For a mental state to qualify as an emotion,

it must be associated with a cognition (Subsection 2)

to perform an action for the purpose of experiencing a particular emotion (Subsection 3)

There is certainly no reason to think of well-being itself as a subjective,

emotional state (Subsection 4)

Well-being is neither dependent on nor constituted by one’s emotional states (Subsection 5)

  Emotions Necessarily Involve Cognitions It’s important to recognize that pleasant psychic states come in (at least) two varieties: sensations and emotions

A sensation carries no particular cognitive content

and we characteristically seek (or avoid) sensations just because of their phenomenal qualities—just,

because of how they feel in a narrow sense

An emotion,

is a sensation allied with a cognition—that is,

with a thought about value or meaning or appropriate response

When I experience an emotion,

I’m experiencing a sensation that serves as a signal either pointing to or prompted by a judgment about what might be an appropriate response to a given situation

Judgments about appropriateness—inherently normative judgments—

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